WOULD A JEWISH CONSTITUTION
BE THEOCRATIC?

By Prof. Paul Eidelberg

Given the increasing number of Israel's Arab citizens,
Israel's present form of government is not viable and will not
see much of the 21st century. Hence the present writer
has drafted a Jewish Constitution which, if implemented, would
enable Israel to pursue its national purpose with vigor and
dignity.

Judging from various sociological studies, such a Constitution
would win the support of a substantial majority of Israel's
Jewish population. Spokesmen across the political and religious
spectrum recognize that Israel's present system of government is
a monstrosity. To increase support for a Jewish Constitution, it
will be helpful to dispel the prejudice that government under
such a Constitution would be theocratic. This is more a semantic
than a substantive issue. If "theocracy" signifies a
regime ruled by a church or by priests, Judaism is not
theocratic. There is no church in Judaism, neither THEOLOGICALLY,
since there is no mediation between G-d and the individual Jew,
nor INSTITUTIONALLY, since there is no
ecclesiastical hierarchy.

If, however, the word "theocracy" is construed
literally as the "rule of G-d," then Judaism is
theocratic, for G-d is the ultimate source of law and authority.
But what does this mean OPERATIONALLY? In
Judaism no priesthood BUT ONLY PUBLICLY TESTED
SCHOLARSHIP CAN LAY CLAIM TO ANY VALIDITY REGARDING THE LAWS OF
THE TORAH. This means that the Torah belongs to every
Jew, whether he is a Kohane, Levite, or Israelite. Let us examine
these three "classes."

The first thing to be noted is that they are hereditary but
not closed. The daughter of an Israelite or Levite may marry a
Kohane and her children will be Kohanes, since "class"
status is patrilineal. Hence, even though Kohanes have distinct
duties and privileges, there is no separation of
"classes." Nor is there a ruling class. In a truly
Jewish state, who rules is based, first and foremost, on
intellectual and moral character. Indeed, the most authentic form
of Jewish leadership is that of the teacher, whose power is not
political but intellectual and moral.

Moreover, unlike the practice of any so-called aristocracy,
education in Israel is open to, and even required of, all members
of the community. Far from stratifying the three
"classes," TORAH EDUCATION IS THE GREAT
UNIFYING FORCE OF THE JEWISH PEOPLE, A PEOPLE THAT HONORS
SCHOLARS MORE THAN KINGS.

In a mature Jewish community the center of gravity lies not in
any ruling class but in the body of the people. In fact, it is
hardly an exaggeration to say that the leaders of a Jewish
community act consistently with the Torah when they make
themselves superfluous! In such a community, writes Rabbi Samson
Raphael Hirsch, "let a Rabbi try to give one decision in
opposition to the Torah, and the humblest Jewish apprentice will
refuse obedience and rebuke the Rabbi for his error or
forgetfulness of his duty, and remind him that among Jews it is
not the clerical robe nor government decrees that confer
authority, that the word of the most celebrated Rabbi carries
weight only so long as it accords with the law, and is null and
void if it conflicts with the law sanctioned in Israel."

Because the Torah belongs to the people as a whole, no
hierarchical power can impose any regulations or any officials on
a Jewish community without first obtaining its consent. As the
Sages themselves teach:

"We must not appoint a leader over the
community without first consulting it"
(Berachot 55a). They also teach that every regulation made by a
Beit Din which has not been accepted by the majority has no
binding force.

This should not be construed in terms of contemporary
democratic thought. There is no unqualified majoritarianism in
the Torah. Under Judaic law the minority can compel the majority
to carry out everything which is a legal obligation of the
community. (Contrast the American Constitution whereby an
individual can bring a suit to the Supreme Court which in turn
can declare a law enacted by Congress unconstitutional, hence
null and void.)

The above analysis should dispel the prejudice that a Torah
government would be a "theocracy," a state ruled by a
priestly caste. Incidentally, back in the 18th century, Harvard
president Samuel Langdon considered the government embodied in
the Torah to be a "perfect republic."

Without a Jewish Constitution Israel will drift from crisis to
crisis, the plaything of forces beyond its control. Zionist
organizations should therefore emulate the Foundation for
Constitutional Democracy and place the idea of a Jewish
Constitution on the agenda of public affairs. If Prime Minister
Binyamin Netanyahu is reelected for a second (and last term), and
were he then to take up this cause and bring it to fruition, his
would be an illustrious place in Jewish history.

Classical versus Contemporary
Democracy

The success of these Plans will ultimately depend on the
restoration of Classical Democracy and its
assimilation to Judaism. Classical Democracy
must first be distinguished from Contemporary Democracy.
Judging from the prevailing ideas and behavior of Western
democratic societies, Contemporary Democracy is
little more than a random aggregation of individuals and groups
pursuing their own aims and interests. The result is nihilism
and multiculturalism
(fortified by the doctrine of moral and cultural relativism that
dominates every level of education in the West). Lacking in Contemporary
Democracy are not only unifying norms of human conduct,
but any rational basis for national loyalty. Contemporary
Democracy denies the existence of universally valid standards by
which to determine whether the way of life of one individual,
group, or nation is intrinsically superior to that of another or
more conducive to human excellence.

In contrast, Classical Democracy is based on
the idea of a Higher Law. The Higher Law
doctrine of the American Declaration of Independence--there
termed the "Laws of Nature and of Nature's God"--may
be traced to the Bible of Israel, i.e. the Torah. The biblical
foundation of American constitutional democracy is often
overlooked. Strange as it may seem, the American
Constitution is far more consistent with the Torah than Israel's
present form of government. The Torah is itself a
Written Constitution with institutional checks and balances.The
executive and judicial-legislative functions of government are
divided between a King and a Supreme Court also called the Great
Sanhedrin. Just as the Sanhedrin is the final interpreter of
Israel's fundamental law, the Torah, so the American Supreme
Court is the final interpreter of America's fundamental law, the
Constitution. As for the executive, a President of the United
States may be impeached, as may (in effect) a King of Israel.

Eighteenth-century American educators saw in the
"polity" of the Torah--apart from its
ceremonial laws--a model for American government. Contrary to the
British and European political tradition, which fixes sovereignty
in the State, and not in the people, the Torah
posits the sovereignty of the people, of course under God. This
does not mean theocracy. The rule of a priestly class over a
"laity" is foreign to Judaic jurisprudence. Because the
Torah belongs to the people as a whole, no
hierarchical power can impose any rules or regulations or any
officials on a Jewish community without first obtaining its
consent. Ironically, whereas the American government was
originally based on the Jewish conception of sovereignty,
Israel's present government is based on a non-Jewish conception
of sovereignty!

Since the Torah (the Higher Law) limits the
powers of government, it posits a most extensive ensemble of
individual rights and reciprocal duties: the right to privacy;
the presumption of innocence; the right to file suit against a
King of Israel; the inadmissibility of confessions and
circumstantial evidence in criminal cases; the requirement of
virtuous witnesses; the right to a speedy trial; the prohibition
against double jeopardy; the right to private enterprise,
constrained by Jewish ethics, especially by the eight grades of
charity, the highest being the provision of gainful employment to
needy people. These are but a few aspects of Jewish
Constitutional Law or of Jewish Constitutional Democracy.

Furthermore, and of crucial importance, the original
understanding of the term "democracy" differs radically
from contemporary democratic thought. Classically understood,
democracy means the rule of an ethnically distinct people, a
people united not only by language, but by endogamous patterns of
marriage and by shared beliefs and values rooted in a common
past--the basis of national loyalty. (This conception of a people
is analogous to the Torah's distinction between an Am and a Goy.
The latter is a corporate entity whose members are not united by
a distinct way of life. The Foundation for Constitutional
Democracy is committed to the restoration of Classical Democracy
and its assimilation to Judaism.

NOTE

Please note that as a result of constructive criticism and
further research on the Constitutions and electoral laws of many,
many Gentile Constitutions, I have made significant changes in
the first draft of our own proposed Constitution. I am still
learning, and I welcome -- with all my heart -- the knowledge of
others. Even now I am thinking of adding the following power to
the lower branch of the legislature -- which is based on one
adult/one vote but has only the function of administrative
oversight -- namely, to allow the lower branch to propose
legislation, but which the upper branch -- consisting solely of
Jews -- can amend or simply reject.

Now if we use the contemporary standard of indiscriminate
equality, this Jewish distinction is undemocratic. (It's also
undemocratic to require a US President to be native-born.) The
point to bear in mind is that democratic equality is only one
principle, which, if you absolutize -- like giving the vote to 12
year-olds -- would destroy any democracy. Indiscriminate equality
violates the very notion of nationhood or peoplehood. Athenian
democracy required its citizens to be ethnic Athenians. Jewish
democracy requires its citizens to be Jews, which means only Jews
can make the laws of the country. Obviously this will be deemed
racism as well as undemocratic -- but only because contemporary
mentality is dominated by egalitarianism -- the ISM being
totalitarian. Japan doesn't suffer from this cultural
self-denial, yet it is a democracy -- in the classical sense.

What we have to do is modify the language of public discourse.
We have to redefine basic concepts. As mentioned above, we have
to assimilate democracy to Judaism, not the reverse.

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Professor Paul Eidelberg is president of the FOUNDATION
FOR CONSTITUTIONAL DEMOCRACY: